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Proving Fault in Medical Malpractice Cases

Alas, we cannot expect doctors—regardless of their experience or skill level—to "fix" all of our maladies without fail. But we can and should expect doctors to perform at a certain level of proficiency and professionalism. When a physician fails to meet this standard of care, and it results in an injury to the patient, that patient may seek damages for medical malpractice. There are a limited number of ways to prove medical malpractice, all of them based on whether the doctor exercised the proper standard of care.


Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove:

  • The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship);
  • The applicable standard of care, and the health care professional's deviation from that standard, which is a breach of the duty owed the patient;
  • A causal connection between the health care professional's deviation from the standard of care and the patient's injury;
  • Injury to the patient.

To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, a plaintiff must present the testimony of another medical expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those recognized in the profession as being competent and qualified to practice. The plaintiff will have to present expert testimony not only as to this standard of care, but also show the defendant failed to meet this standard.

Common examples of medical malpractice include:

  • Failure to obtain informed consent from a patient
  • Failing to properly document patient health data;
  • Neglecting to remove surgical tools from a patient's body after surgery
  • Performing surgery on the wrong part of a patient's body
  • Patient misdiagnosis or improper treatment post-diagnosis

Negligent Prescription of Medications or Medical Devices

A medical professional may be held liable for the negligent prescription of a medication or medical device if he or she ignored the manufacturer's instructions, or prescribed an incorrect medication or dosage, which resulted in injury to the patient. In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries under products liability theory, but usually only if the manufacturer failed to warn of potential side effects or dangers of the drug.

In most cases, the prescribing physician is considered a "learned intermediary," which means that because of his or her superior medical knowledge, and the fact that he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.

Informed Consent

In many situations, the failure to obtain a patient's "informed consent" before administering a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it essentially means that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent to proceed.

Problems of Proof: The "Res Ipsa" Doctrine

Establishing wrongdoing on the part of a health care provider is often difficult. It requires hiring expert witnesses, who must testify as to what the defendant should have done under applicable professional standards. Proving malpractice is also difficult because the defendants are often the ones who write the medical reports that may form the basis of the suit, and they can frame the reports in a manner that presents facts most favorable to themselves.

Fortunately, the law recognizes that plaintiffs face certain difficulties in proving medical negligence. If a patient injured as the result of a medical procedure does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of his or her health care provider(s), he or she may invoke a legal doctrine known as "res ipsa loquitur." Translated, this Latin phrase means "the thing speaks for itself," and implies that the plaintiff only needs to show that a particular result occurred and would not have occurred but for someone's negligence.

Once this doctrine is used the burden of proof shifts from the plaintiff to the defendant to show that he or she was not negligent. To use the doctrine of res ipsa successfully, a plaintiff must show that:

  1. Evidence of the actual cause of the injury is not obtainable;
  2. The injury is not the kind that ordinarily occurs in the absence of negligence;
  3. The plaintiff was not responsible for his or her own injury;
  4. The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury; and
  5. The injury could not have been caused by any instrumentality other than that over which the defendant had control.

For example, a doctor's failure to remove surgical sponges from a patient's body post-surgery may result in a case that falls under the purview of the Res Ipsa doctrine.

Get a Claim Review from a Medical Malpractice Attorney

There are a limited number of ways to prove medical malpractice. Experienced attorneys will know right away whether they can easily prove fault in your case. Indeed, they will be able to discuss the strengths and weaknesses of your case and advise you how to proceed. The first step in finding the right attorney is to contact a medical malpractice attorney in your area.

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